dissents, and votes to reverse the judgment, grant those branches of the defendant’s motion pursuant to CPLR 4404 (a) which were to set aside the jury verdict on the issue of liability and for judgment as a matter of law, and dismiss the cause of action alleging medical malpractice, with the following memorandum: In this action to recover damages for medical malpractice, a jury concluded that the defendant, a physician who was providing treatment to the plaintiff, committed malpractice by engaging in a consensual sexual relationship with the plaintiff, and that this malpractice proximately caused her emotional and economic damages. On appeal, the defendant argues, among other things, that he was entitled to judgment as *979a matter of law because the plaintiffs evidence failed to demonstrate that he had committed acts of medical malpractice. I agree, and, therefore, respectfully dissent.
According to the plaintiffs trial testimony, in January 2000, she sought treatment from the defendant, a family practitioner, for symptoms that he diagnosed as depression and panic attacks. The defendant prescribed an antidepressant medication, and recommended that she seek counseling from a psychiatrist or psychologist, although the plaintiff did not initially do so. The plaintiff subsequently returned to the defendant’s office approximately once or twice per month, at which times she discussed with the defendant her symptoms and the “stressors . . . in her life,” and the defendant reassured her, giving her advice as to how to work through her panic attacks. According to the plaintiff, the defendant described this treatment as “talk therapy.”
According to the plaintiff, in June 2001, while she was still the defendant’s patient, the defendant initiated a sexual encounter, which the plaintiff reciprocated. The plaintiff testified that she was “infatuated” with the defendant because he was “meeting emotional needs” that her husband was not. In “the beginning of the summer that the affair started,” the plaintiff also began meeting with a therapist whom the defendant had recommended. For the next nine months, according to the plaintiff, she and the defendant engaged in a consensual sexual relationship, while he continued to treat her. The plaintiff admitted at trial that she knew that the sexual relationship was not “part of the treatment.” In March 2002 the plaintiff and the defendant mutually decided to end the relationship, and the plaintiff told her husband of the affair, which ultimately led to a divorce.
The plaintiff subsequently commenced this action, in which she asserted that the defendant committed medical malpractice by engaging in a sexual relationship with her while she was his patient. The jury agreed with the plaintiff, and awarded her damages for emotional injuries, as well as for loss of financial support from her husband arising from the divorce. The plaintiff’s evidence, however, particularly in light of her own testimony that the consensual sexual relationship was unrelated to any medical treatment she received from the defendant, failed, as a matter of law, to demonstrate that the defendant committed any acts of medical malpractice.
Conduct by a physician constitutes malpractice “only when [it] constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment” (Gross v Kurk, *980224 AD2d 582, 582 [1996]; see Scott v Uljanov, 74 NY2d 673 [1989]; Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; see also Bazakos v Lewis, 12 NY3d 631, 634 [2009]). More specifically, conduct constitutes medical malpractice when “it can be characterized as a ‘crucial element of diagnosis and treatment’ and ‘an integral part of the process of rendering medical treatment to [the plaintiff]’ ” (Spiegel v Goldfarb, 66 AD3d 873, 874 [2009], quoting Bleiler v Bodnar, 65 NY2d at 72; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [the “inquiry” in a medical malpractice action involves “an analysis of the medical treatment furnished”]). In accordance with these principles, this Court, in Gross, affirmed the dismissal of the plaintiffs complaint alleging medical malpractice because she “made no allegation that her social and sexual relationship with the defendant constituted part of her treatment or was in any way related to her treatment” (Gross v Kurk, 224 AD2d at 582).
Even though the defendant in that case did not provide mental health services to the plaintiff, this Court’s holding was the product of an application of the rule, stated in that case, that conduct constitutes malpractice “only when [it] constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment” (id.). The majority cites no authority for the proposition that conduct committed by physicians not providing mental health services constitutes malpractice only when it constitutes or is substantially related to treatment, whereas physicians providing mental health services can commit malpractice even when their conduct does not constitute treatment or bear a substantial relationship to treatment.
As in Gross, here, the plaintiffs evidence failed to prove that the defendant breached the duty he owed to her by virtue of their physician-patient relationship, notwithstanding the moral impropriety of his conduct. The plaintiff admitted at trial that she knew that the sexual relationship she had with the defendant was not part of her treatment (cf. Roy v Hartogs, 85 Misc 2d 891, 892 [1976] [“plaintiff was induced to have sexual intercourse with the defendant as part of her prescribed therapy”]). Indeed, the plaintiff acknowledges on appeal that the sexual relationship was “extraneous to treatment,” but nonetheless contends that the sexual relationship need not be part of the treatment in order for her to prove that the defendant committed acts of medical malpractice. The case law she relies upon in connection with her contention that a sexual relationship “extraneous to treatment” may constitute medical malpractice, however, does not support her contention. In none of the cited cases is it clear that the courts were expressly presented with, *981and decided, that issue (see Marpe v Dolmetsch, 246 AD2d 723 [1998] [granting the plaintiffs motion to amend the complaint to add a medical malpractice cause of action predicated upon sexual relations, without discussing whether the allegations would properly constitute medical malpractice]; Coopersmith v Gold, 172 AD2d 982 [1991] [concluding that the defendant was equitably estopped from asserting a statute of limitations defense to the plaintiffs malpractice claim predicated upon sexual relations with the defendant physician]; Noto v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 160 AD2d 656, 656 [1990] [holding that “there (was) no cause of action for lack of informed consent, because the alleged sexual liaison was not a treatment or diagnosis”; no discussion of medical malpractice cause of action, which was left intact by Supreme Court]).
Instead of arguing that the sexual relationship constituted or bore a substantial relationship to medical treatment, the plaintiff here argues, and the majority agrees, that “where the sexual relationship actually interferes with the treatment and causes harm . . . then there is a civil remedy in the form of an action [to recover damages] for medical malpractice.” It cannot reasonably be maintained, however, that any conduct committed by a doctor that interferes with a patient’s treatment, no matter how unrelated to treatment or the practice of medicine, constitutes a departure from accepted medical practice (see generally Gross v Kurk, 224 AD2d 582 [1996]; Scott v Uljanov, 74 NY2d 673 [1989]; Bleiler v Bodnar, 65 NY2d at 72). For example, a physician’s act of sexually assaulting a patient would undoubtedly harm the patient, including his or her mental health, and would likely interfere with any mental health treatment being provided. However, this Court has held that such conduct does not constitute medical malpractice because the injuries “stem[ ] from the alleged intentional assault by the defendant, not the medical services rendered” (Fragosa v Haider, 17 AD3d 526, 527 [2005]). Similarly, here, the plaintiffs alleged injuries stem from the defendant’s intentional conduct of engaging in a consensual sexual relationship with her, extraneous to treatment.
Moreover, the mere fact that the plaintiff and the defendant had a physician-patient relationship does not render every act committed by the defendant toward the plaintiff one of medical malpractice (cf. Weiner v Lenox Hill Hosp., 88 NY2d at 787-788 [although “a hospital in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice” (internal quotation marks omitted)]; Elashker v Medical Liab. Mut. Ins. Co., 46 *982AD3d 966, 967 [2007] [a thyroid examination performed on a nurse by a physician “merely provided the occasion for the alleged (sexual) assault and did not convert (physician’s) acts into professional malpractice”]).
By engaging in sexual relations with the plaintiff, the defendant may have committed professional misconduct warranting disciplinary penalties, such as revocation of his license (see Education Law § 6530 [20]; Matter of D’Angelo v State Bd. for Professional Med. Conduct, 66 AD3d 1154 [2009]; Matter of Barad v State Bd. for Professional Med. Conduct, 282 AD2d 893 [2001]). Further, the defendant undoubtedly acted unethically from a moral perspective, particularly due to the plaintiff’s vulnerable emotional state. However, not all immoral conduct is actionable in tort. Nor does a violation of professional ethical guidelines, if such were the case here, by itself necessarily support a civil cause of action to recover damages for malpractice (cf. Nesenoff v Dinerstein & Lesser, 5 AD3d 746, 748 [2004]; Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193 [2003]; Mills v Pappas, 174 AD2d 780, 782 [1991]; Brown v Samalin & Bock, 155 AD2d 407 [1989]). The evidence here demonstrated that the sexual relations between the defendant and the plaintiff were not an “ ‘element of diagnosis and treatment’ ” or “ ‘an integral part of the process of rendering medical treatment to [the plaintiff]’ ” (Spiegel v Goldfarb, 66 AD3d at 874, quoting Bleiler v Bodnar, 65 NY2d at 72) but, rather, were, as the plaintiff concedes, “extraneous to treatment.” Accordingly, the plaintiffs cause of action to recover damages for medical malpractice fails as a matter of law.
While the majority relies, in part, upon its conclusion that the sexual relationship “clearly had an impact upon the plaintiffs level of trust and openness with her other therapist,” the majority’s judgment about the plaintiff’s “level of trust and openness with her other therapist” is not supported by expert testimony or other evidence in the record. In any event, even if the sexual relationship had such an effect, that does not create a substantial nexus between the sexual relationship and the treatment rendered by the defendant.
The majority also relies, in part, upon the testimony of the plaintiff’s expert regarding the “transference phenomenon.” The plaintiffs expert testified that the plaintiff experienced a “ubiquitous phenomenon” known as “eroticized transference,” whereby the patient “re-experiences” feelings he or she had for a parent during “early life” and “puts them on the psychiatrist.” The expert opined that the plaintiffs sexual feelings toward the defendant, and her failure to control these impulses, *983were related to this “phenomenon.” The plaintiff, however, invokes this testimony only in arguing that the jury erred in apportioning any fault to her for the damages she sustained as a result of her sexual relationship with the defendant, and not to support her theory of how the defendant committed malpractice. Despite the expert’s testimony regarding the “transference phenomenon,” he made clear, as does the plaintiff on appeal, that the alleged “departure” from good and accepted medical practice was “sex between [the defendant] and [the plaintiff]” (see Physicians’ Reciprocal Insurers v Giugliano, 37 AD3d 442, 444 [2007] [“Dupree’s amended complaint alleged solely that Dr. Giugliano acted negligently by engaging in sexual contact with her, and did not indicate any misconduct by Dr. Giugliano beyond this alleged sexual contact”]). As previously discussed, the defendant’s act of engaging in sexual relations with the plaintiff, even if her desires were the product of the “transference phenomenon,” did not contribute to the provision of, or the failure to provide, medical treatment and, thus, while unethical, was not an act of medical malpractice (see Gross v Kurk, 224 AD2d at 582; cf. Fragosa v Haider, 17 AD3d 526 [2005]; Karczewski v Sharpe, 248 AD2d 679, 680 [1998]).
Accordingly, I would reverse the judgment, grant those branches of the defendant’s motion pursuant to CPLR 4404 (a) which were to set aside the jury’s verdict in the plaintiffs favor on the issue of liability and for judgment as a matter of law, and dismiss the cause of action to recover damages for medical malpractice.